Little did we suspect that Google’s collection of personal data and manipulation of search results was mere practice for the job of censoring, curating, and providing behavioral surveillance for repressive governments (more on search manipulation here and here). Actually, some of us have expressed trepidation that our own individual liberty might face such a vulnerability, with Google working in concert with our own government:

“As a firm like Google attains the status of an arm of the state, or multiple states, it could provide a mechanism whereby those authorities could manipulate behavior and coerce their citizens, making the internet into a tool of tyranny rather than liberty. ‘Don’t be evil’ is not much of a guarantee.”

Now, however, the company is working with the government of mainland China to implement a version of its search engine that meets the needs of the Communist regime. J.D. Tuccille calls this “Privatized Authoritarianism”. Search results from Google’s Chinese utility might come back blank, or certain sites might be banned, or at least banned from the first page of results (e.g., Wikipedia, the BBC).

Not only that, the Chinese government is building a system of “social credit scores” for its citizens, essentially a one-number report card like the FICO credit score in the West. This one, however, is driven by more than financial transactions; it’s intended to account for a variety of behaviors including one’s record in criminal and civil matters, anything reflecting one’s “trustworthiness”, general comportment, and alignment with official doctrine. The country is building a gargantuan network of surveillance cameras with visual recognition technology and artificial intelligence that will be used to generate inputs to the social score. And Google’s Chinese search platform?

“… users’ interest in pursuing forbidden paths of inquiry will certainly become part of their permanent record. That’s no joke in a country that’s rapidly modernizing the hoary old mechanisms of the police state with a modern ‘social credit’ system that can effectively place people under house arrest with nary a trench coat in sight.

‘A poor Chinese social credit score can lead to bans from travel, certain schools, luxury hotels, government positions, and even dating apps,’ notes the Brookings Institution. Liu Hu, an investigative journalist, incurred the Chinese government’s wrath for exposing corruption among Communist Party officials. He’s among millions who have been punished with a tanked social credit score that prevents him from easily working or even leaving his hometown.”

Political search activity is one thing. What happens if you search for information on foreign news sources? Certain medications or certain disfavored goods? Movies? Books? Sex? What are the consequences of actually clicking on a particular link in a search result? Could the governments place “honey pots” into search results? Could the system be used by the government to entrap citizens? You bet it could!

The Chinese government is everything a liberal should hate, classical or otherwise. But they do what they do. Google, which takes pride in its “do the right thing” mantra, is most certainly not doing the right thing by contributing to this intrusive effort. And it could happen here in the West. In fact, it is probably already happening here to some degree.

Google was fined $2.7 billion by the European Union in 2017 for biasing its search results in favor of its own services. That ruling was made on traditional antitrust grounds: the bias in search results was judged to have anti-competitive effects on the searched-for service markets. But apart from a direct connection to some other form of commerce, traditional antitrust arguments are difficult to make against a free search engine. The company has a high market share but by no means a monopoly over search results, at least in the U.S.

Still, a partnership between Google and government is potentially troublesome, and more so than run-of-the-mill corporatism, though there is that, too. Many individuals are blasé about managing their privacy on social media, while many others seek a level of anonymity to those outside of their social circle. The latter may be wise, but it won’t do them much good if the government gains access to their on-line behavior. The real issue is ownership of our personal information, and that is an unsettled area of the law. Google acquires that information for free in exchange for providing a free search engine. But can Google or any other company with an online platform legally use your personal data as it likes? No, at least not in principle, but that’s no guarantee that the data won’t be used in ways to which you’d object. If anyone should have rightful monopoly rights over the use of individual data, it’s the individual. But strict data privacy might mean we’ll have to pay to use the search engine.

Government has a monopoly on force, but one can hardly bring antitrust action against government, Google partnership or not. That monopoly on force is why our constitutional rights are so critical. Those rights are primarily unenumerated in the U.S. Constitution, while the powers of the federal government are explicitly limited and enumerated. Individual liberty, including the right to privacy, must be respected and protected by our institutions. That should include data privacy. As the reach of government social programs grows, however, participation requires that personal data is increasingly shared with the government. That’s another good reason to keep government small!

Please no, Mr. President, do not even flirt with putting the federal government in charge of building and operating a new 5G wireless network! Sure, you’ll hate to disappoint the hawks on the National Security Council (NSC), but please let this remain outside the scope of your infrastructure plan!! For one thing, the private sector already has it underway, and the task is not straightforward. Excessive government involvement would almost surely botch the job. Let’s face it: while shrill calls for central planning of one form or another are constantly heard from leftists and populists, the government is really lousy at it. But then good central economic planning is impossible, given the impossibility of knowing and tracking the vast and dynamic information flows necessary to get it done, not to mention knowing and executing the appropriate responses to that information. There is a better tool for that called “markets”.

Scott Shackford reports that the chairman of the FCC, Ajit Pai, reacted with swift condemnation to the 5G discussions taking place within the NSC. Do read the whole Shackford piece. Apparently, there are some in the NSC who imagine government being good at building, maintaining, and securing a wireless network. This despite the antiquated nature of the federal government’s information systems and, as Shackford notes, their poor security. There is also the potential threat that communications over such a network would be subject to monitoring by nosey law enforcement and other public officials. If national security always implies state control, I’ll take less, but I don’t believe that’s the case for a minute.

The government tends to be a poor custodian of infrastructure — really public assets in general, and there is a reason: incentives are lacking. Private communication networks keep improving thanks to private incentives, like the prices and profits that promote efficient behavior and the market pressures to offer data plans that private users value. The government, on the other hand, struggles even to maintain the interstate highway system, which is simple technology by comparison. But statists tend to view the lack of private incentives as a feature: it’s free! And as a consequence, it is over-utilized and under-maintained. Ultimately the taxpayer is on the hook for capital costs and any upkeep that can be mustered, not the user, but the user suffers the degraded quality of those assets. A nationalized wireless network and its users would suffer the same fate.

Private infrastructure like wireless networks is best encouraged by eliminating regulatory roadblocks to private construction and operation of those assets. That includes the welcome rollback of the stifling network neutrality rules. Low taxes also help, not to say special incentives for wireless carriers.

I’m following-up on “I’m a Restroom Federalist” by sharing “We Need Separation of Bathroom and State” by Roy Cordato at the Mises Institute. He makes a clean defense of the libertarian view that restrooms choices on private property must not be controlled by government. Any attempt to do so is a violation of private property rights, according to this view. I did not adequately treat the question of property rights in my first “restroom” post. Strong property rights in this context mean that you, a private businessperson, can set the rules for restroom use on your premises, or no rules at all. If you or your customers prefer gender-neutral restrooms in your place of business, so be it. If you believe your customers prefer separate restrooms based on a definition of gender, you can post appropriate signs and face any complaints privately without interference from government.

Many sincere observers hope for a way to fairly accommodate transgender individuals without unduly compromising the rights of others. In my mind, discrimination (or differences in accommodations) should not be tolerated in society if based on arbitrary distinctions. By that I mean the victim differs from the discriminator only in nonessential ways for the purposes at hand. For example, discriminating on the basis of race is wholly arbitrary in almost context. (A director casting the part of an individual of a specific race is a possible exception.) No real harm comes from tolerance and equal treatment in these contexts. I have argued that the market is self-regulating in punishing discrimination. And one can argue that certain freedoms may be violated (association, religion, expression and even property) when even arbitrary forms of discrimination are outlawed, as they are. In these situations, however, laws can work because there is little ambiguity in defining victims of discrimination and the legitimacy of their victimhood.

Is discrimination against transgenders in their restroom options just as arbitrary as it would be against other minorities? That depends upon whether “transgender” can be defined objectively. If it cannot, then denying the bearded lady’s transgender claim in the restroom is not so arbitrary, given the privacy rights of others.

Tyler Cowen discusses some of the complexities of determining whether there should be a legal definition of transgender, or a more “nuanced” definition of gender with three or more categories. That would eliminate any legitimate objections to gender-specific restrooms. However, a legal standard cannot be based solely on “inner feelings”. Aside from genitalia, are there objective facts that can be brought to bear in defining gender? A personal physician’s assessment of “gender intent” is one possibility. An active regimen of hormone replacement therapy is another. However, transgenders themselves might object to any specific definition of gender imposed by government. Many transgenders would prefer to have it remain a matter of self-identity, but it is impossible to clearly define rights on that basis. As Cowen notes, the “most libertarian view is to refuse to offer a legal definition of transgender.” He also adds:

“If we stick with no legal definition of transgender, let’s tackle the remaining problems directly. For instance we could significantly increase the penalties for men who abuse women or young girls in or near women’s rooms, if indeed that is an ongoing problem.“

As I intimated in my earlier post, I am unconvinced that gender-neutral restrooms won’t encourage voyeurism by posers. That implies a conflict between the rights of transgenders and the fundamental right to privacy. Given that fact, Cowen’s suggestion is sensible under any restroom regime. He also cites the existence of voluntary gender registration systems in other countries. Given a clear definition, transgenders choosing to register could use the restroom consistent with their gender identity and would have documented proof if any question arose as to their right to use a particular facility.

Cordato provides a good explanation of the Charlotte anti-discrimination ordinance and North Carolina’s new law striking it down. The Charlotte ordinance stripped owners of business property of their right to set rules for their own restrooms. The state law does several things: It restores the rights of business owners to provide separate restrooms for males and females, which is fine as far as it goes. It also mandates gender separation of multi-occupancy restrooms and locker rooms in government facilities. Truly, it is hard to imagine any good coming of mixing middle-school girls and boys in the same restrooms and locker rooms. However, the state law also prohibits the promulgation of any anti-discrimination law by lower jurisdictions. That seems a bit too sweeping.

Cowan says the North Carolina law is a solution in search of a problem, or worse:

“North Carolina made a mistake in signing the new law. Not just a practical mistake, because of the backlash, but a mistake outright. I’m not aware there was a problem needing to be solved, and yet new problems have been created.“

Maybe so, but the city of Charlotte clearly took a step in violation of private property rights, and one that threatened privacy rights. I stated in my first restroom post that alternative arrangements will be tested socially, at the ballot box, and by the courts. Some object to the strong privacy ethic that exists in the U.S. as prudish, but it is a cultural given, and privacy rights are protected by the Constitution. Given a conflict over rights between two parties, the courts must decide how to balance those interests.That’s as it should be. And so we’re back to the beauty of federalism!

A joke I once heard: “What two words does a guy least want to hear at the urinal? … Nice d*ck!” The truth is that privacy matters. While most men don’t wish to be “admired” by other men, mens’ public restrooms would seem to provide adequate privacy for those having a particular sensitivity. I presume that womens’ restrooms do too.

Still, voyeurism is more common than we’d like, and strong privacy advocates believe that’s an adequate rationale for prohibiting transgender women (M to F) from using womens’ restrooms. It’s not legitimate trans-women who are of concern, whether they’ve undergone full sexual reassignment or not. Rather, it’s men who would falsely claim to be trans-women. Put another way, does the state have any compelling interest in protecting privacy by discriminating against transgender women, barring their use of womens’ restrooms?

Laws against voyeurism are grounded in the presumed right to privacy under the U.S. Constitution. The expectation of privacy is well-established as a condition under which voyeurism can be prosecuted, and bathrooms meet that test. In fact, the prevalence of voyeurism is estimated to be quite high, especially among males. The Wikipedia entry on this subject states that:

“…research found voyeurism to be the most common sexual law-breaking behavior in both clinical and general populations. … In a national study of Sweden it was found that 7.7% of the population (both men and women) had engaged in voyeurism at some point. It is also believed that voyeurism occurs up to 150 times more frequently than police reports indicate.“

The estimate from Sweden is conservative for male voyeurs. However, only a portion of that voyeurism occurs in or around public restrooms. For the sake of argument, let’s suppose that 5% of the estimate above relates to males likely to commit some form of voyeurism in or around womens’ restrooms, or 0.38% of the adult male population. Each of those males may commit voyeurism against multiple females on any given bathroom escapade, so this value may underestimate the risk to the privacy of women.

On the other hand, the prevalence of transgender, or gender identification different from that assigned at birth, is very low. Again according to Wikipedia, the most commonly cited figure is that 1 in 10,000 assigned males is transgender (and far fewer birth-assigned females). Some argue that this is too low to account for even the cases of sexual reassignment surgery (SRS) that have occurred in the U.S. I would argue, however, that trans-women (M to F) having undergone SRS would be welcome in womens’ restrooms. After all, they’d even pass a genital check at the door! That leaves transgender men who have not yet, or will not, undergo SRS. So, for the sake of argument, I will go with the incidence rate of 0.01% implied by the figure above. That is, 0.01% of the adult male population is an assigned-male trans woman having male genitals.

Assuming that all womens’ restrooms are thrown open to any male claiming to be a trans-woman, the conservative estimate of the incidence of voyeurism would be 38 times the incidence of legitimate trans-women disallowed from entering womens’ restrooms under traditional gender restrictions. Note that neither of these estimates has a time dimension. Repeat voyeurism is a likelihood, just as legitimate trans-women, pre-SRS, would be denied their rights on every trip to a public restroom.

Now we ask again which case is more compelling: protecting the right to privacy against the potential for voyeurism, or protecting the restroom rights of trans-women who are pre- or non-SRS? One possible solution is to acknowledge restrictions on restroom use as an incentive for transsexuals to undergo SRS. However, that is not practical in important respects: full gender transition can take a number of years; SRS is not and cannot be an immediate procedure for walk-ins at the doctor’s office for various reasons; and some transsexuals are never able to make a full transition.

Another consideration is the extent to which bathroom regulation makes any difference at all. While “throwing the doors open” might create some additional incentive to male voyeurs, they are already active, and most of them would be just as easy to prosecute if the rules on restroom use for trans-women were relaxed. However, to the extent that creates additional risk, it is borne by all women availing themselves of public restrooms. At the same time, it is certain that trans-women already make use of womens’ restrooms. If non-SRS, they must do so surreptitiously and at some legal risk, Again, their total number is limited.

The balance between the threat to privacy rights and the desire for equitable treatment of transsexuals is not as clear-cut as some on either side would have us believe. However, given the need to determine that balance, the classic federalist approach seems ideal. That is, states or more limited political jurisdictions should decide how best to handle the issue. That is more or less our current approach, as the issue is otherwise beyond our ability to find a consensus. Full conversion to unisex restrooms might even be acceptable in some parts of the U.S. Fortunately, individuals can “vote with their feet”, rewarding those jurisdictions having laws they find best-protect their rights as individuals. It’s another great experiment in the determination of social preferences. That’s what federalism is all about.

In advanced civilizations the period loosely called Alexandrian is usually associated with flexible morals, perfunctory religion, populist standards and cosmopolitan tastes, feminism, exotic cults, and the rapid turnover of high and low fads---in short, a falling away (which is all that decadence means) from the strictness of traditional rules, embodied in character and inforced from within. -- Jacques Barzun